Also known as:elective share · right of election · spousal elective share
Written by attorneys · grounded in primary & secondary sources — see below
A statutory right of a surviving spouse to claim a fractional share of the decedent's augmented estate in lieu of any devise or bequest under the will. The right attaches upon the decedent's death when the spouse is domiciled in the state and may be satisfied by amounts already passing to the spouse by will, intestacy, or nonprobate transfer. The share is calculated against the marital-property portion of the augmented estate and is independent of homestead, exempt-property, and family allowances unless a valid waiver applies.
Sources & Authorities
How it applies
Common Examples
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Mid-Marriage Waiver Agreement
After several years of marriage, Elliot and Emma signed a one-page document stating that Elliot would accept a lump-sum payment in full satisfaction of any future claim against Emma's estate. Emma later died, leaving her business interests to her son and only a life estate to Elliot. Elliot petitioned for an elective share. The court enforced the signed writing as a valid waiver that relinquished the right, even though the agreement lacked separate financial schedules.
Felonious Killing Forfeiture
Enzo and Edgar were co-owners of a company. Edgar intentionally caused Enzo's death in a staged accident to gain control of the business. Edgar was convicted of the felony. When the estate was probated, Edgar's petition for an elective share was denied because the killing caused automatic forfeiture of every benefit under the probate code, including the elective share.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Casebooks
Inter Vivos Transfers to Defeat Share
Ewan transferred most of his assets into revocable trusts shortly before his death, leaving only a small probate estate to his wife Erika. Erika filed for an elective share. The court examined whether the transfers were illusory and therefore still reachable for purposes of calculating the augmented estate subject to her claim.
Newman v. Dore9 N.E.2d 966 (N.Y. 1937)
Common questions
Frequently Asked
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Can a surviving spouse receive homestead, exempt property, and family allowances in addition to an elective share?+
Yes. The allowances are treated as independent entitlements and are not charged against the elective-share amount. The statute expressly provides that the allowances operate separately from the fractional share of the augmented estate.
Supporting sources
What formalities are required to waive the right of election?+
A waiver is effective only through a written agreement signed by the surviving spouse before or after marriage. The agreement is enforceable without consideration, though it may be challenged on grounds such as duress or lack of voluntariness.
Supporting sources
Does a spouse who feloniously kills the decedent still receive an elective share?+
No. The killer forfeits every benefit under the probate article, including the elective share. The estate is distributed as if the killer had disclaimed the interest.
Supporting sources
When must a petition for an elective share be filed to include nonprobate transfers in the augmented estate?+
The petition must be filed within nine months after death or six months after probate, whichever is later. Filing more than nine months after death excludes nonprobate transfers from the augmented estate calculation.
Supporting sources
9 N.E.2d 966 (N.Y. 1937)Wills Trusts and Estates
…her or him in case of intestacy. That was changed by section 18 of the revised Decedent Estate Law. By that section “a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.” These limitations…